A blupete Essay

Criminal Law, Part 7 to blupete's Essay
"On Liberty"

And, so, we come to the subject of criminal law. Criminal laws are to be limited in number, though open ended; certain; and only in negative form, such as not to kill, not to steal, not to commit assault, etc. Criminal law is to be defined in a careful manner in keeping with the wishes of the people and passed by more than a simple majority, and, always, within the confines of constitutional law. It is left to the citizens to set for themselves, through the workings of the common law, laws which will regulate civil proceedings (civil law: citizen/citizen -- versus -- criminal law: citizen/state).

More simply, as Bertrand Russell put it, criminal laws are "a method of enabling men to live together in a community in spite of the possibility that their desires may conflict." We each are free agents existing side by side, and through our family commitments and commercial contacts, -- whether conscious of it, or not -- we mutually support one another. In a civilized society we function because we recognise invisable boundaries, within which boundaries individuals exist and operate. The boundaries are determined by both private and public law.

And, so it is, we must have law; but, in Benthan's declaration, "every law is evil, for every law is an infraction of liberty." So, while law might be necessary: it can be our undoing. As Lord Chesterfield was to observe to his fellows:

"One of the greatest Blessings we enjoy, one of the greatest Blessings a People, my Lords, can enjoy, is Liberty; but every Good in this Life has its alloy of Evil; Licentiousness is the Alloy of Liberty; it is an Ebullition, an Excrescence; -- it is a Speck upon the Eye of the Political Body, which I can never touch but with a gentle, -- with a trembling Hand lest I destroy the Body, lest I injure the Eye upon which it is apt to appear. ... There is such a Connection between Licentiousness and Liberty, that it is not easy to correct the one, without dangerously wounding the other."
As to what our criminal laws should be? Well, each of us will develop our own unique list. Most of us will head up the list with the word murder and go from there, -- my list, I suspect, would be shorter than most. As one goes about making up his or her own list, he or she, should realize that each item (criminal law), added to the list, is just another cut, trenching into freedom: deeper and deeper.

To allow people to compete (within the confines of the criminal law) for all that they might need or want in this world: will mean, the preservation of freedom for everyone. When people compete on the basis of their own personal skills and family connections, then they will be promoting a society in which most people will be able to carry on feeling satisfied that they, as least, fit in; or, where not, possess the feeling that they have the right to act, freely, again within the bounds of criminal law, strictly defined, -- so, as to effect change with the view to bringing some improvement to their lives. To proceed otherwise, to play favourites,18 will lead to most everyone feeling like misfits, and, what is more destructive, left with a feeling there is nothing that they, as individuals, can do about it. So, the question might be: do we wish to see a society where most everyone fits in (some better than others); or, a society that is crippled, top to bottom, with people who think they were really cut out for something better, but see no means by which they might effect change, short of latching on to one or more of the demagogues that drift around in great numbers among us.


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Peter Landry

2011 (2019)